High cost of freedom

NORFOLK, Va. -- Arthur Whitfield is either one of the luckiest men alive or the unluckiest. It's never clear, least of all to Whitfield.

Sweat pours off his forehead, down his face, through his gray beard, falling like fat raindrops on his drenched black T-shirt.

NORFOLK, Va. -- Arthur Whitfield is either one of the luckiest men alive or the unluckiest. It's never clear, least of all to Whitfield.

Sweat pours off his forehead, down his face, through his gray beard, falling like fat raindrops on his drenched black T-shirt.

He pedals his bicycle through traffic, a bag of work clothes hanging from the handlebars. The hazy August heat drapes the 52-year-old like a steamy blanket. His past trails him like a black cloud.

The produce warehouse where he works is almost in sight, the 4-mile ride nearly over, when the chain pops off his cobbled-together Huffy. Again.

Fingers still greasy, he quickly fixes the chain and is on his way. This lanky, soft-spoken man isn't easily discouraged.

"Every day that I'm not incarcerated," he explains later, "is a good day."

Three years ago, Whitfield was released from prison after serving 23 years for two rapes that DNA tests showed he didn't commit. He was cleared based on evidence that was supposed to be long gone but wasn't. The tests also identified the real attacker, a serial rapist who by then was serving life in prison.

But unfortunately for Whitfield, the law and politics of DNA aren't as advanced and clear-cut as the science.

Today, Whitfield isn't free but on parole. He's a registered sex offender for crimes the local prosecutor and state crime lab director agree he didn't commit.

But Whitfield, of all people, with nearly half his life already stolen, knows it could be worse. Much worse.

Had he been convicted in Ohio, for example, he almost certainly still would be in prison.

Gambling on a guilty plea

Whitfield pleaded guilty to rape on May 6, 1982.

Not because he was beaten, tortured or tricked by police or lawyers. Not because he was mentally impaired. Whitfield was 27 years old and knew exactly what he was doing.

He had just been convicted of one rape. The victim, grabbed from a dark street at knifepoint, had picked Whitfield from a police lineup. The judge bolstered her identification by allowing another victim -- both women were raped an hour apart, in the same neighborhood, apparently by the same man -- to testify that she had picked Whitfield from a lineup, too.

The jury deliberated for more than seven hours but ultimately trusted the victims' memories, not Whitfield's friends, relatives and a neighbor who testified that he was with them at a birthday party on the night of the rapes. Whitfield was sentenced to 45 years.

Now, Whitfield faced trial for the other rape. Coincidentally, the victims were friends, and both were lined up again to testify.

It would be a virtual replay of the first trial. If convicted again by a jury, Whitfield faced a potential life sentence. Also working against him was his record: two prison stints, in 1976 and 1978, for robbery.

"I knew I didn't have a leg to stand on," he said.

"If I take the deal for 18 years," he figured, "I can make parole maybe somewhere down the line."

Determined to see his family again someday outside prison walls, he took the deal, for a combined sentence of 63 years.

Pinning his future on DNA

Hope faded as Whitfield appeared before the parole board 14 times over the years, each time only to be returned to his cell.

After years behind bars, he decided to tell the parole board what parole boards everywhere want to hear.

"I finally decided I'd go in there and admit I did it and say I'm sorry," he said. "But I didn't do it. Every time I went in there, I froze up."

Being rejected for parole, it turns out, became yet another irony-tinged stroke of luck for Whitfield. "Because I never would have gotten a chance to also clear myself," he said.

In 2001, Virginia passed a law allowing convicted felons to apply for DNA testing. The law followed a DNA exoneration of an inmate who was one of the first in the nation saved by the emerging science of identifying microscopic human cells in the blood, semen, hair and saliva left by attackers at crime scenes.

Virginia was several years ahead of Ohio, and today remains more open to testing, in law and practice. While being paroled might have prevented Whitfield from getting a DNA test in Virginia, it would have automatically disqualified him in Ohio.

Also, Ohio is one of only a few states that wrote an additional hurdle into its law for inmates who, like Whitfield, pleaded guilty.

In those cases, Ohio law says a judge can't grant a test unless the prosecutor agrees -- an all-but-insurmountable barrier. Only one of 92 of those requests has been granted, The Dispatch found in a first-ever examination of Ohio's testing program.

Whitfield faced no such legal roadblock in Virginia, although winning approval for a test in any state is a long shot.

"At the time, everything seemed impossible in terms of me getting out," Whitfield said. "I always liked to think I had a chance to get out. But it felt like I was slipping, and I needed something to hold onto."

He filled out the brief application in 2003.

Thanking 'Miss Burton'

Everybody warned Whitfield that the evidence from his case likely was gone.

Norfolk police looked and couldn't find it. Neither could the clerk of courts.

The victims' sexual assault exams were conducted years before the advent of DNA testing. According to crime-lab procedures at the time, the swabs should have been disposed of long ago.

"I didn't too much understand at first, when they said the evidence might be destroyed," he said. "Why would my evidence be thrown away?"

Nowadays, it probably wouldn't be. Virginia stopped the indiscriminate destruction of evidence when it adopted its inmate DNA testing law. So have 21 other states.

Evidence preservation still isn't required by law in Ohio, and inmate applications for DNA testing are routinely derailed because of lost or destroyed evidence, the Dispatch investigation found.

Fortunately for Whitfield, he was not in Ohio.

More important, his case was handled by Mary Jane Burton, a headstrong scientist not given to policies that involved trashing her work.

When the state pulled lab files from Whitfield's case in December 2003, the swabs, like cottony Q-tips, were taped inside. So were swatches of the victims' clothing.

By then, Burton, an Ohio native who retired to Cincinnati, had been dead five years. But Whitfield still talks about "Miss Burton" as if the forensic scientist were a beloved aunt.

"She's no longer here but, if she can hear me, I want to thank her, because I know she's in a good place now. I've never forgotten her name."

Winning his freedom

Norfolk lawyer Michael F. Fasanaro was assigned to the case.

To him, Whitfield was just another court-appointed obligation -- a twice-convicted rapist who had pleaded guilty, no less -- to juggle between paying clients.

"I just thought it was another case," Fasanaro said.

Then the fax came across his machine late one Friday afternoon.

The 23-year-old swabs still contained DNA from the women's attacker, and the genetic fingerprint didn't match Whitfield's.

"I was absolutely surprised -- stunned," Fasanaro said. "I had to read it twice, quite frankly. I had to read it out loud."

He immediately confirmed the results with the prosecutor's office, which wanted to re-test. The next day, officials swabbed the inside of Whitfield's cheek for a fresh DNA sample and ran the comparisons again.

Again, no match -- not to Whitfield, anyway.

Unable to immediately reach Whitfield, Fasanaro called his mother.

"I told her I had wonderful news for her, that her son was coming home the next day," he said. "She cried. She was overwhelmed.

"That was probably one of the most joyful things I've done."

Whitfield was released from prison, 23 years and three days after his arrest.

He caught a bus home. There were no seats available, so Whitfield gladly stood the whole 100-mile ride -- finally free.

Twisting in a technicality

But Whitfield's life of viciously cruel ironies followed him home to Norfolk.

To clear the way for his immediate release from prison, the state put him out on parole.

Nobody gave it a second thought until his lawyer filed for a writ of actual innocence, paperwork to formally certify what the prosecutor already had acknowledged and continues to tell anybody who asks: Arthur Lee Whitfield didn't do it.

By then, the prosecutor even knew who did.

The DNA matched Aaron Doxie III, whose genetic profile was part of a state computer database. Doxie, who declined to be interviewed for this story and hasn't commented publicly, already was serving life in prison for rapes he committed two years after Whitfield was sent to prison.

And another old rape had just been belatedly pinned on Doxie. In that case, yet another man, Julius Ruffin, had been wrongfully convicted and served 20 years before DNA cleared him in 2003, just as Whitfield's exoneration was playing out.

Ruffin also had been saved by DNA tests on swabs squirreled away by Mary Jane Burton.

So nobody expected the judge to reject Whitfield's request for a declaration of innocence. But the judge ruled that a close reading of Virginia law showed a person must be incarcerated to be considered for a writ of actual innocence.

The circular logic caught everybody by surprise. Whitfield appealed. The case went before the state Supreme Court, which ruled in a split decision in October 2005 that Whitfield in fact had no legal standing now that he was out of prison.

"It is tragic, because we're talking about a technicality rather than the actual facts of the innocence," Fasanaro said. "I mean, he's been found innocent through the DNA, and no technicality should stand in the way of that."

Working on a fresh start

Outside the courtroom, Whitfield fared better -- for a while.

Everything seemed to fall into place. Managers at a local credit union read about his plight in the newspaper and offered him a job. Whitfield was a high-school dropout laborer who earned his diploma in prison. He looked around, bewildered by the computers, and declined.

The manager insisted. He told Whitfield that he was prohibited from hiring convicted felons, but he was going to do it anyway and keep Whitfield on the staff as long as he could.

"That was a big turnaround for him," said his older brother, Raymond Whitfield, of Dayton. "I've never seen him so thrilled and so happy, and the people liked him."

Whitfield worked as a customer service representative, teller and loan processor. His co-workers helped set him up with an apartment and a car, and welcomed him as one of the team. He smiles as he recalls them dragging him onto the dance floor at the office Christmas party.

But after two years, somebody outside the branch office noticed a convicted felon on the payroll, Whitfield said. They bid him a warm goodbye.

"They asked me when I get my pardon to come back," he said.

Lobbying against a pardon

By then, Whitfield already had asked the governor for a pardon.

Ruffin, the Norfolk man released a year before Whitfield after serving 20 years, offered Whitfield encouragement.

But for all of their similarities -- both cases involved the same rapist, both were investigated by the same police detective, both men were cleared by DNA saved by the same lab technician -- there was a key difference.

After the DNA tests, the victim in Ruffin's case greeted him with public apologies for her part in unknowingly convicting the wrong man. She called for reforms to prevent mistakes in the future. She even testified before the legislature to help Ruffin secure $1.2 million from the state.

A previous governor pardoned him on the way out of office.

In Whitfield's case, one victim wrote a seven-page letter to the governor urging him to deny a pardon, still convinced that Whitfield was her attacker.

Both victims say their separate descriptions of the attacker were similar, and that they bore no similarity to Doxie. The women, who were forced to perform oral sex during the rapes, also both say their attacker was uncircumcised -- like Whitfield and unlike Doxie.

They question the validity of DNA tests on swabs that had been stuffed in files, unprotected, for more than 20 years by a lab worker who isn't alive to answer for them.

"DNA doesn't lie? No, it doesn't. But you can screw it up," one victim told The Dispatch, which does not identify victims of sexual crimes unless they agree to be named.

The other victim bristles at what she views as a "pity party" for Whitfield.

"There is no way I made a mistake. It's absolutely him. I've been saying that since Day One."

While both victims gave the jury strikingly similar descriptions of their attacker, the testimony contradicted some of their initial statements to police, records show.

They testified to Whitfield's distinctive hazel-colored eyes, but only one had noted his eye color immediately after the attack, describing it as brown. They also both told police the rapist was clean-shaven, but Whitfield had a beard.

In her letter to the governor, the contents of which haven't been reported until now, one victim says she now believes the other woman was raped by a different man and mistakenly identified Whitfield.

She suggests that evidence could have been intermingled in the two decades leading up to the DNA tests.

After the DNA tests, Norfolk Commonwealth Attorney John R. Doyle III, the prosecutor, said in his request for Whitfield's release from prison that he was convinced "beyond any question" that Whitfield was innocent.

"All the evidence in the case excludes him as the rapist," he said recently. "And I haven't seen anything that would persuade me this is not the case."

Pete Marone, director of the Virginia Department of Forensic Science, also backs the results.

"From a scientific standpoint, Aaron Doxie is there and Arthur Whitfield is not," Marone said. Moreover, DNA from the victims on those same swabs, while degraded and incomplete, was consistent with the women's genetic fingerprints. "There's enough (victim DNA) there you feel confident there's not a mix-up."

Living in seclusion

Whitfield is frustrated but not angry.

"I'm not mad or have any hard feelings," he said. "I believe (the victims) actually believe what they saw was me. I understand."

Push, prod, provoke, needle Whitfield all you want. He won't raise his voice or lash out.

Not when he talks about losing his credit-union job and having to move back home with his parents.

Or when he talks about the time his neighbors watched him being arrested because, as a registered sex offender, there was brief confusion about where he was living.

"I let God work it out," Louise Whitfield said, breaking down and retreating out the back door of her house.

Outside of work, Arthur Whitfield mostly has reverted to the lifestyle that served him well in prison -- minimizing contact with others and filling the time watching TV, particularly soap operas.

If 23 years in prison taught him anything, it's not to get his hopes up. On the other hand, he also knows as well as anyone never to give up.

Gov. Timothy M. Kaine, who declined to comment for this story, hasn't granted a pardon. But the Democrat, who took office in January 2006, hasn't denied one, either.

Finding a new home

The cramped waiting room is filled with stiff-backed chairs, a vending machine and glum-faced men wearing electronic ankle bracelets.

Whitfield walks up to the receptionist's window and asks to see his parole officer, who seems to recognize that Whitfield isn't a typical ex-con.

"Arthur's a hard case," he says, smiling, patting Whitfield on the shoulder. He encourages Whitfield to be patient. "I keep telling him, all we've got is time."

Whitfield smiles sheepishly, but it's difficult being patient when you're a 52-year-old man living with your parents.

A day earlier, Whitfield pedaled to work, struggling to keep the chain on his Huffy. Today, he is taking a day off from the produce warehouse to chase a short-term dream: finding his own place to live.

He recently lost his wallet -- Whitfield is prone to losing his wallet, keys, you name it -- and he needs new identification to secure a lease. His parole officer agrees to help.

His bosses at the produce warehouse are helping, too. The business office reviews paperwork and leases for him, and offers to advance deposit money if he finds the right place.

Earlier in the day, a friend of his mother's had shown him a house she had for rent.

As Whitfield sized up the tiny pale yellow shotgun house with teal shutters and a front porch, he spied a group of teenagers across the street. Music blared, bass thumping, from a parked car. "Is it rowdy around here?" he asked.

In the end, Whitfield looked past the neighbor kids, beyond the overgrown yard and the weed-choked flowerbed obscuring the front porch, and saw possibilities.

"I'm gonna have fun cutting the grass, trimming the hedges, fixing things up. I don't even care if it doesn't have a bed," he said.

"My life's not too good right now. But things are looking better. Any time you're not incarcerated, it's a good life."

Waiting for a pardon

Whitfield, now 53, moved into the house in August, where he lives with his girlfriend and her two daughters.

Also last summer, the Ohio Supreme Court ruled unconstitutional the portion of the law here that gives prosecutors sole authority to reject DNA applications from inmates who, like Whitfield, pleaded guilty.

Ohio has yet to enact a law requiring evidence to be preserved.

In Virginia, after the exonerations of Marvin Anderson in 2002, Ruffin in 2003 and Whitfield in 2004 -- all thanks to evidence saved by Mary Jane Burton -- the governor ordered a review of a random sampling of 31 more of her files.

Those led to the exonerations of two other men who had served a combined 31 years in prison for rape and were by then on parole.

Now, the state lab is combing all of its files -- more than a half-million, from 1973 to 1988 -- in search of other evidence that, contrary to lab practice, was stowed in files.

So far, officials have found samples that could cast new light on more than 2,000 murders, rapes and serious assaults, Marone said, most of them handled by Burton.

A first batch of 166 cases has been sent to a private lab for DNA testing, the start of a process that will probably take another year.

Meanwhile, Whitfield still awaits word from the governor on a pardon. It's been 772 days and counting.

gdutton@dispatch.com

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